Herons Court, Shenley Hill, Radlett, Hertfordshire, WD7 7FA CAM/26UE/LDC/2023/0004
FIRST-TIER TRIBUNAL
PROPERTY CHAMBER (RESIDENTIAL PROPERTY)
Case No CAM/26UE/LDC/2023/0004
Between
Herons Court (Radlett) Management LimitedApplicantAll leaseholders of dwellings at the property (including any of their sub-tenants of any such dwelling) who are liable to contribute to the cost of the relevant agreementsRespondent
Before
Mary Hardman FRICS IRRV(Hons)Herons Court (Radlett) Management Limited Collinson Hall Limited for the ApplicantDate 4 April 2023Property: Herons Court, Shenley Hill, Radlett, Hertfordshire, WD7 7FAType of application: For dispensation from consultation requirements - Section 20ZA of the Landlord and Tenant Act 1985
DECISION
Description of hearing This has been a remote determination on the papers which the parties are taken to have consented to, as explained below. A hearing was not held because it was not necessary, and all issues could be determined on paper. The documents that I was referred to are in a hardcopy bundle from the Applicant. I have noted the contents and my decision is below. The tribunal’s decision The tribunal determines under section 20ZA of the Landlord and Tenant Act 1985 to dispense with the consultation requirements in respect of qualifying works to replace frayed lift ropes Reasons for the tribunal’s decision The application[1]The applicant freeholder seeks dispensation with the statutory consultation requirements in respect of qualifying works to replace frayed lift ropes.[2]The relevant contributions of leaseholders through the service charge towards the costs under these agreements would be limited to a fixed sum unless the statutory consultation requirements, prescribed by section 20 of the Landlord and Tenant Act 1985 (the “1985 Act”) and the Service Charges (Consultation etc) (England) Regulations 2003:(i) were complied with; or(ii) are dispensed with by the tribunal.[3]In this application, the Applicant seeks a determination from the tribunal, under section 20ZA of the 1985 Act, to dispense with the consultation requirements. The tribunal has jurisdiction to grant such dispensation if satisfied that it is reasonable to do so.[4]The only issue here for the tribunal is whether it is satisfied that it is reasonable to dispense with the consultation requirements[5]This application does not concern the issue of whether any service charge costs under the relevant agreements will be reasonable or payable or by whom they are payable. The Property and parties[6]The applicant says the property consists of a purpose-built block of 12 units built in 2012.[7]The application is made by Herons Court (Radlett) Management Company Limited on behalf of the landlord, Collinson Hall Limited. The application was made against the leaseholders of the relevant flats (the “Respondents”) Procedural history[8]The Applicant says that dispensation is sought, as explained below.[9]Initial case management directions were given on 8 February 2023. The directions included a reply form for any leaseholder who objected to the application to return to the tribunal and the Applicant, also indicating whether they wished to have an oral hearing. Any such objecting leaseholder was required to respond by 3 March 2023.[10]The directions further provided that this matter would be determined on or after 17 March 2023 based on the documents, without a hearing, unless any party requested an oral hearing[11]The applicant wrote to the leaseholders on 10 February 2023.[12]On reviewing these documents, the tribunal considered that an inspection of the Property was neither necessary nor proportionate to the issues to be determined and that a hearing was not necessary. The Applicant’s case[13]Initial documentation provided by the Applicant states that following a routine service visit on 5 December 2022 it was advised that the suspension ropes had shown an increase in diameter of approximately 35% and there were circa 16 broken wires within one rope. Advice was to renew immediately as it was a health and safety issue.[14]Quotes have been obtained from Associated Lifts and Orona Limited and Directors have given their authority to proceed with the cheaper option provided by Orona Limited. Work was scheduled to commence on 27 January 2023.[15]In their submission the applicant provided a copy of a ‘Report of Thorough examination of lifting equipment’ issued by British Engineering Services on 5 December 2022. This is said to be a six monthly examination with the last examination on 21 April 2022. This states that ‘The suspension ropes show an increase in diameter of approximately 35% in clusters of up to 16 broken wires within one rope lay and should be renewed immediately’.[16]They also provide a ‘Site notice of defect affecting safe operations’ of the same date. This repeats the above defect and states that the lift remains in operation at client request.[17]A quote of 6 December 2022 from Orona sets out the cost of replacing the suspension ropes only, at £6304.80 including VAT and the replacing of both the suspension ropes and overspeed governor rope at £6782.40 including VAT.[18]Collinson Hall also approached the Lift Company Ltd in December 2022 (see later) who said that they would not want to re-quote for this work. However, as a result of an approach by Collinson Hall in March 2023 they replied to say that ‘they had received numerous calls from one of the residents of Herons Court, Mrs Candy Cooper asking why we were reporting the ropes required replacement when they had been replaced previously. We explained that the rope that had previous been replaced was a governor rope that was replaced by others before we took over the maintenance of the lift and not the main hoisting ropes which was now requiring attention. One of our engineers actually showed Mrs Cooper the worn sections section of rope whilst on site and explained that it needs replacing.’[19]They also supply a copy of an email from Orona of 28 July 2022 stating that ‘suspension ropes required to be replaced, Overspeed Governor Rope requires replacing, no rubber mat on site, lift UPS requires replacing, lift battery requires replacing, autodialler working but not connected to the COP engineer to reconnect.’ The quote for the work was £6,577.57.[20]The work does not appear to have been done at that time and no reason is given for this.[21]An earlier report of 28 February 2022 by The Lift Company Ltd also notes the ‘poor condition of the main hoisting ropes as report by our Service Engineer and the LOLER inspection previously’ although an email of 20 January 2022 notes a conversation between a Candy Cooper and Eren Gunaydin of Collinson Hall, block management which says ‘we discussed the problem of the lift ropes and whilst they do need to be replaced it is not urgent just yet. As I have mentioned and the engineer explained the engineering insurance are the best judges of the exact state of these ropes and how imminently the repair needs to be carried out.’[22]A report of 1 November 2021 also by The Lift Company states that ‘it was noted that the main hoisting ropes are showing signs of wear. They therefore require replacement in the near future’. In respect of the respondent objecting to the application the managing agents, Collinson Hall said that Mrs Cooper was a former director and secretary of the management company. Relations between the complainant, her husband and the current directors of the management company had been fractious for a sustained period. As representive to the management company, Collinson Hall had borne first hand witness to this and it was one of the reasons for which they had tendered their resignation on two separate occasions, the most recent and final being made on the 20 February 2023. The Respondents’ position[23]As mentioned above, the directions provided for any Respondent who wished to oppose the application for dispensation to complete the reply form attached to the directions and send it to the tribunal and the Applicant.[24]The tribunal received only one, albeit lengthy objection from Mrs Candy Cooper who stated she was the representative for the Residents Management Company at the time of the making of the application for retrospective dispensation of consultation requirement for the qualifying works.[25]She said that she objected to the retrospective dispensation being granted through placement of the lift ropes in their entirety after replacement has taken place.[26]She said that the directors knew this application to the FTT was necessary albeit for the wrong reason, as early as December 8, 2022, but did not act promptly. Instead, they waited until the 24 January 2023, three days before the work was to begin to make the application.[27]She felt they had plenty of time to begin the process and serve notice of intention or at least engaged residents in some sort of explanatory dialogue but did nothing. The application had been made so that directors could justify replacing the lift ropes in their entirety having dispensed with Section 20 consultation or any form of discussion with residents. The work was carried out in haste without conclusive evidence and without obtaining a second professional opinion.[28]The directors ‘did prioritise work’ or consider the future financial implications although they had been advised to prepare a costed future maintenance plan by their management agent. Without this residents have been left vulnerable to the probability of having to pay additional monies to cover essential works that may arise in the coming year, especially as the building is now 10 years old[29]She goes on to say that during 2021 and 2022 the lift had been subject to its biannual inspections and no defects to the ropes were reported. However, the Lift Company had reported an issue with the ropes after a routine maintenance visit and not long after they had been awarded the maintenance contract. They had reported the ropes to be needing attention in the ‘near future’ but directors had obtained two quotations without serving a notice of intention but had not gone ahead with the work. Had a notice of intention been served residents would have been given the opportunity to provide the name of an independent contractor who could comment on the work. This was denied to them, and all residents have therefore suffered prejudice.[30]At a subsequent visit the Lift Company confirmed that although the ropes needed replacing it was not considered urgent. Subsequent reports from Orona did not report any faults with the ropes.[31]British Engineering carried out a delayed inspection on 5 December 2022 and reported the suspension ropes to have defects. Nothing was said about the overspeed governor rope and based on this one report the directors decided to arrange for the ropes to be replaced. Report gives little information as to why these works were so urgent that the directors decided to avoid consulting with residents why if the directors thought it's so urgent they waited seven weeks before seeking a second expert opinion or consultation and chose just to go ahead with the work.[32]On 6 December 2022 she had emailed the managing agent suggesting that directors ought to obtain an independent expert audit to obtain concrete evidence to confirm that replacing the ropes was necessary and urgent. She had named three appropriate companies to contact but her suggestions were ignored. Residents had suffered prejudice because of the directors’ procedural errors, disregard of the suggestions to obtain expert advice and because they've been denied the opportunity to make observations. Money spent on this work could have been better spent elsewhere.[33]Residents were informed of the problem with the lift ropes in a brief mention in the directors’ report and at the AGM on 8 December 2022 but this gave conflicting and incorrect information with the amount quoted differing by some £450 from the quote. They were then informed on 24 January 2023 of the works which were due to commence on 27 January 2023. She had written to all residents at this point with her observations. She felt that residents had been prejudiced by this[34]She felt that the quotes supplied for the work were not like for like and were misleading leading to prejudice to the residents. She also felt that money had been spent ‘recklessly’ which also prejudiced the residents.[35]She felt that the Health and Safety Executive had not been informed and this questioned the urgency of the work.[36]She had consulted with a David Smith of Independent Lift and Escalator Consultants who she had recommended for expert advice. She reported that he had said the photographs alone would not be considered as conclusive evidence in a court of law. The ropes themselves should have been kept as evidence of their condition. In his expert opinion there are discrepancies in the report of the LOLER engineer as he has never known the diameter of ropes to increase. He said it was not necessary to replace both the suspension rope and the overhead governor rope especially as neither the reports mentioned the problem with the governor rope.[37]She felt it was premature of the BES engineer to suggest all ropes had reached the end of their life and the lift needed to be shut down and that nothing supported the need to replace the governor rope. This meant cost had been incurred unnecessarily which was additional prejudice.[38]Residents, many of whom were elderly had been kept in the dark and had little or no understanding of the Landlord and Tenant Act or FTT procedures, thus causing further prejudice[39]In summary Mrs Cooper says that her objections to the application are Doubts exist over the urgency necessity of these works for the following reasons• only one of the two reports a year apart have been provided as evidence and this report is questionable• neither refer to defects in the overhead governor rope which is being replaced• no concrete evidence has been provided to support the need for replacing one set of ropes never mind two sets a ropes• two out of three of the original quotations dated November 2021 only costs the suspension ropes they did not include the over speed governor ropes• the works have been carried out without two contemporary quotes. Case of Marshall v Northumberland and Durham• the comparable quote being relied on is the one from Associated Lifts Ltd is well out of date. It is dated November 2021• the second from Orona whilst dated 6 December 2022 appeared to be a version of their original quote of November 21 with the date and quotation and were changed but leaving name the same Determination[40]Following the Supreme Court decision of Daejan Investments Ltd. v Benson [2013] UKSC 14, the only issue for the Tribunal is whether the Respondents have suffered prejudice in dispensing with the consultation requirements.[41]There is only one objection from a leaseholder, Mrs Cooper.[42]The work was agreed to by three directors of Heron Court Management Company in December 2022.[43]The majority of the objections by Mrs Cooper, as set out above and summarised in paragraph 39 do not relate to the respondents suffering prejudice from the dispensation from consultation requirements. Most appear to relate ultimately to an issue with the reasonableness and/or payability of the service charge arising from the replacement of the lift ropes. As such this may be the subject of an application under s27(A) of the Act.[44]She alleges that there was little evidence that the ropes needed replacing. However, the management company is able to provide a number of reports which comment on the deteriorating state of the ropes over time and a final report which states that the ropes should be replaced immediately.[45]She also alleges that there is no evidence that the overspeed governor rope needed replacing. The managing agents reasonably say that they made a decision to do this at the same time, based on the information they had, as the additional cost was marginal.[46]Mrs Cooper does refer to prejudice in a number of instances. In some cases, this relates to alleged prejudice from not consulting at an earlier time – paragraph (29) above. Whilst it is arguable that this should have taken place the tribunal does not consider this is relevant to this application. This is an application to dispense with the requirements to consult following the report of 5 December 2022 and at that point it is impossible to change what has gone before.[47]She also suggests that residents were ‘kept in the dark’ about the work. However, leaseholders were provided with a copy of the application, accompanying documents to include quotes for the costs of the proposed work and a copy of the tribunal’s directions. The applicant has informed the tribunal that this was done, and the remaining 11 leaseholders did not object to dispensation being granted.[48]Mrs Cooper says that shortly after hearing about the work needing doing, she had emailed the managing agent suggesting that directors ought to obtain an independent expert audit to obtain concrete evidence to confirm that replacing the ropes was necessary and urgent. She said she had named three appropriate companies to contact but her suggestions were ignored. The tribunal does not find that this is evidence of prejudice should the tribunal dispense with consultation requirements.[49]Furthermore she does not provide any alternative quotes and whilst she refers to the opinion of an ‘industry expert’ no expert witness report is provided.[50]The tribunal has carefully considered the matter and is satisfied that it is reasonable to dispense with the consultation requirements in relation to the replacement of the frayed ropes.[51]It therefore determines under section 20ZA of the 1985 Act to dispense with all relevant consultation requirements in relation to these agreements.[52]This is not an application for the tribunal to approve the reasonableness of the works or the reasonableness, apportionment or payability of any service charge demand.[53]I make no finding in that regard and the leaseholders will continue to be able to make an application under section 27A of the Act in respect of the reasonableness of the agreements and/or the reasonableness, apportionment or payability of the service charge demand for them.[54]There was no application to the tribunal for an order under section 20C of the 1985 Act.[55]The Applicant shall be responsible for serving a copy of this decision on all leaseholders. Mary Hardman FRICS IRRV(Hons) 4 April 2023 + Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The application for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the person making the application. If the application is not made within the 28-day time limit, such application must include a request for an extension of time and the reason for not complying with the 28-day time limit; the tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed, despite not being within the time limit. The application for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party making the application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).